Coshow v. Konami Gaming Inc.

Filing 11

ORDER. IT IS THEREFORE ORDERED that 8 defendant Konami Gaming, Inc.'s motion to dismiss is GRANTED. Plaintiff Lacey Coshow's complaint 1 is DISMISSED without prejudice. The clerk of court is instructed to close this case. Signed by Judge Andrew P. Gordon on 3/1/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LACEY COSHOW,

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Case No. 2:16-cv-02383-APG-VCF
Plaintiff,

v.
KONAMI GAMING,

ORDER GRANTING MOTION TO
DISMISS
(ECF NO. 8)

Defendant.

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Defendant Konami Gaming, Inc. filed a motion to dismiss the complaint for lack of proper

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service because service was both untimely and not made on a person with authority to accept

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service on Konami’s behalf. Plaintiff Lacey Coshow did not respond. I therefore grant the

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motion to dismiss as unopposed. LR 7-2(d).

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I also grant the motion on the merits. “A federal court does not have jurisdiction over a

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defendant unless the defendant has been served properly under Fed. R. Civ. P. 4.” Direct Mail

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Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Rule

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12(b)(5) of the Federal Rules of Civil Procedure authorizes a defendant to move for dismissal due

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to insufficient service of process. The plaintiff then has the burden of demonstrating that service

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of process was valid. R. Griggs Grp. Ltd. v. Filanto Spa, 920 F. Supp. 1100, 1102 (D. Nev. 1996).

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Actual notice of a lawsuit will not subject a defendant to personal jurisdiction “if service was not

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made in substantial compliance with Rule 4.” Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir.

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2013) (quotation omitted).

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Coshow filed the complaint on October 12, 2016. ECF No. 1. She thus had until January

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10, 2017 to serve Konami. See Fed. R. Civ. P. 4(m). On January 11, 2017, the clerk of court

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issued a notice advising Coshow to file proof of service or the case would be dismissed without

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prejudice. ECF No. 6. On January 20, Coshow filed proof of service showing Konami was

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served on January 18 by serving Christine Sweitzer, a human resources analyst for Konami. ECF

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Nos. 7, 8-3. The service therefore was untimely. Moreover, Konami has presented evidence that

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Sweitzer was not authorized to accept service on Konami’s behalf. See ECF Nos. 8-3, 8-4.

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Because Coshow did not respond to the motion to dismiss, she has not shown service of process

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was valid.

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I nevertheless must extend the 90-day time limit of Rule 4(m) if Coshow shows good

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cause for failure to serve within 90 days. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir.

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2009). Coshow bears the burden of demonstrating good cause for the delay. Fed. R. Civ. P. 4(m);

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see also Boudette v. Barnette, 923 F.2d 754, 755 (9th Cir. 1991). Generally, good cause is

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equated with diligence. Townsel v. Contra Costa Cnty., Cal., 820 F.2d 319, 320 (9th Cir. 1987).

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A showing of good cause requires more than inadvertence or mistake of counsel. Id. “[A]t a

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minimum, good cause means excusable neglect.” In re Sheehan, 253 F.3d 507, 512 (9th Cir.

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2001) (quotation omitted).

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Because Coshow did not respond to the motion to dismiss, she has not shown good cause

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for extending the service deadline. I therefore will dismiss this case without prejudice for failure

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to timely and properly serve Konami.

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IT IS THEREFORE ORDERED that defendant Konami Gaming, Inc.’s motion to dismiss

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(ECF No. 8) is GRANTED. Plaintiff Lacey Coshow’s complaint (ECF No. 1) is DISMISSED

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without prejudice. The clerk of court is instructed to close this case.

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DATED this 1st day of March, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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